The appellant challenged findings regarding the existence of a roadway and drain, and his construction of a wall blocking access. The court held no substantial question of law arose.
The appeal (Second Appeal) was dismissed; the impugned judgment and decree confirming the lower court's decree were upheld.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF MARCH 2021
BEFORE
THE HON’BLE MR.JUSTICE NATARAJ RANGASWAMY
REGULAR SECOND APPEAL NO.1027 OF 2020 (INJ)
BETWEEN:
MR. WALTER STEPHEN MENDES S/O LATE BASEL MENDES AGED ABOUT 49 YEARS RESIDING AT M/S MENDES PLAZA BUNTS HOSTEL ROAD MANGALORE – 575003. ALSO AT: R/AT MENDIS VILLA THACCODE POST MOODABIDRI D.K. DISTRICT …APPELLANT (BY SRI. RAJASHEKAR S., ADVOCATE) AND:
MRS. PATCY FIGREDA W/O VICTOR D’SOUZA AGED ABOUT 57 YEARS R/AT NO.2-11-820/1(2) BEHIND KADRI POLICE STATION, KADRI VILLAGE, MANGALORE-575002. REPRESENTED BY HER ATTORNEY MR. VICTOR D’SOUZA, S/O LATE JOSEPH D’SOUZA, AGED ABOUT 57 YEARS …RESPONDENT
(BY SRI. UDAYA PRAKASH M, ADVOCATE FOR CAVEATOR RESPONDENT)
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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF THE CIVIL PROCEDURE CODE AGAINST THE JUDGMENT AND DECREE DATED 22.01.2020 PASSED IN R.A. NO.76/2018 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM, MANGALURU, DAKSHINA KANNADA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 09.07.2018 PASSED IN O.S.NO.923/2009 ON THE FILE OF THE III ADDITIONAL CIVIL JUDGE AND JMFC., MANGALURU, DAKSHINA KANNADA.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This Regular Second Appeal is filed by the defendant in O.S.No.923/2009 challenging the concurrent finding of fact recorded by the Trial Court in O.S.No.923/2009 and the First Appellate Court in R.A.No.76/2018. Both the Courts restrained the defendant from obstructing or damaging the 23 links wide road leading from National Highway No.17 to the plaint schedule properties and also directed the defendant to restore the 20 links wide drain situate on the southern side of the plaint schedule properties starting from the eastern edge to its original condition.
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of the suit properties, she having acquired the same in terms of a deed of settlement dated 24.07.2002 executed by her husband (Exs.P3 and P4). The defendant was a purchaser of a portion of the property lying on the western side of the suit properties and he attempted to interfere with the possession of the plaintiff over the suit properties on the ground that he had a right of way across the suit properties. The plaintiff contended that the defendant had a right of way from the cross road to National Highway No.17 and therefore, had absolutely no right or interest over the suit schedule properties. She contended that there was an approach road measuring about 23 links wide leading from the National Highway No.17 to not only the suit properties but also to the property belonging to her
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brother-in-law. The said road led to the southern side and reached the suit properties on their western portion and further proceeded towards the western side. The plaintiff contended that she had absolute right to use the same for the ingress and egress to and from the suit properties. She further claimed that on the southern side of the suit properties, there was a storm water drain measuring 20 links wide running east to west. She claimed that this drain was in existence for more than 50 years. The defendant had unauthorizedly filled mud over the starting point of the drain and thus, blocked the drain which resulted in water flowing into the schedule properties and nearby properties. Therefore, the plaintiff filed a suit for perpetual injunction restraining the defendant from obstructing or damaging the 23 links wide roadway leading from the National Highway No.17 and passing on the western side of the suit properties and for a mandatory injunction directing the defendant to restore the 20 links wide drain to its original condition situate on the southern side of the schedule properties.
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that he had a direct access to the said property from the National Highway No.17. Since the road has been blocked, the defendant is not in a position to reach his own property. He claimed that the plaintiff had no right of way in respect of item No.1 of the suit properties and that in the surrender deed dated 13.02.1995 (Ex.P10), there was no right reserved in respect of item No.1 of the suit properties. He contended that the plaintiff in the year 2009 got executed a deed of rectification and got the surrender deed dated 13.02.1995 rectified in terms of which, the plaintiff had claimed a right of way. The defendant claimed that the plaintiff after obtaining an order of temporary injunction had put up a wall across the road which ran in front of the gate of the property of the defendant. The defendant therefore contended that the plaintiff is not entitled to any relief sought for. The defendant filed a counter claim for a mandatory injunction directing the plaintiff to remove the wall that was put across in front of the road leading to the property of the defendant. The
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defendant contended that this wall was put up by the plaintiff after obtaining an order of injunction.
Court framed the following issues and additional issue:
2. Whether the plaintiff proves that the defendant cause interference to use the roadway leading to schedule property?
3. Whether the plaintiff is entitled for the permanent prohibitory injunction as sought for?
4. Whether the plaintiff is entitled for the Mandatory injunction as sought for?
5. What Order or decree?”
ADDITIONAL ISSUE:
6. The husband of the plaintiff was examined as
PW.1 and he marked documents Exs.P1 to P11. The
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defendant was examined as DW.1 and he marked documents Exs.D3 to D9. During the time of crossexamination of PW.1, Exs.D1 and D2 were confronted and marked. A commissioner was appointed and he filed his report.
the Trial Court held that the dispute was regarding the existence and the interference with the 23 links wide pathway leading from the National Highway No.17 and passing on the western side of the plaint properties. The Trial Court also held that the dispute was regarding the existence of the 20 links wide drain lying on the southern side of the plaint properties. It also held that there was a dispute regarding the existence of the right of road to the defendant’s property on the western side. The Trial Court noticed the documentary evidence in the form of Exs.P3 and P4, which were the deeds of settlement executed by the husband of the plaintiff in favour of the plaintiff in respect of item Nos.1 and 3 of the suit schedule properties
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as well as 3.25 cents of the property of the defendant. The Trial Court noticed from these documents that an approach road was mentioned as one of the boundaries of the property. The Trial Court also noticed in Ex.P5 which was a sale deed dated 16.02.1996 executed in favour of the husband of the plaintiff in respect of item No.3 of the suit schedule properties and that an approach road existed on the western side. In Ex.P10, which is the deed of surrender dated 13.02.1995 in favour of the husband of the plaintiff in respect of item No.1 of the suit properties, there was a mention about the approach road as one of the boundaries of the property. In the surrender deed dated 13.02.1995 which was rectified by a rectification deed dated 29.08.2009, it was mentioned that the husband of the plaintiff is entitled to use the 23 links wide roadway as shown in the sale deed dated 23.01.1995 for the purpose of ingress and egress of the schedule property. Having regard to the oral evidence of PW.1 and DW.1, the Trial Court held that the plaintiff had put up a wall across the gate of the defendant’s property. The Trial Court also held
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that 3.25 cents of land was sold by the plaintiff in favour of the defendant’s vendor and in the said sale deed, the western side boundary was shown as an approach road. The Trial Court also noticed the sketch as per Ex.P6 which showed that a 23 links wide roadway existed which ran from National Highway No.17 towards the South-east and took two deviations, one towards the further east where admittedly item No.3 of the suit properties and the property of the defendant were situate and another deviation ran towards further south and then towards west leading to item No.1 of the plaint schedule properties. The Trial Court therefore held that the plaintiff had proved the existence of the 23 links wide roadway from National Highway No.17 leading to plaint schedule properties as well as the 20 links wide drain towards southern side of suit properties. The Trial Court also noticed from the report of the Commissioner that the drain was filled with mud. Therefore, the Trial Court not only decreed the suit of the plaintiff but also decreed the counter claim of the defendant and directed the plaintiff to remove the wall that
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she had put up blocking the access to the property of the defendant and contemporaneously directed the defendant to restore the 20 links wide drain to its original condition and also passed an injunction restraining the defendant from obstructing or damaging the 23 links wide road from the National Highway No.17 to the plaintiff’s property.
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on the southern side. The First Appellate Court also noticed that there was a sketch which was attached to Ex.P6 which indicated that a road existed on the southern side of item No.1 of the suit properties. It also noticed the sketch filed by the defendant along with written statement where too the road on the southern side of the item No.1 was mentioned. Based on the aforesaid, the First Appellate Court held that there was a road lying on the southern side of the item No.1 of the plaint schedule properties. The First Appellate Court relied upon Ex.P11 to hold that the said road was 23 feet wide and ran from the National Highway No.17. The First Appellate Court also noticed from the cross-examination of PW.1 wherein he admitted that the defendant is the owner of the land measuring 23 cents and he specifically admitted that there was a gate fixed to enter the defendant’s land. He also admitted of having put up a wall in front of the said gate and therefore the defendant was not in a position to enter his land due to the construction of the wall. Therefore, the First Appellate Court held that the defendant had proved that the plaintiff
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had constructed a wall with an intention to prevent the defendant from entering his property. The First Appellate Court held that the evidence of PW.1 established that the defendant was using the road for the purpose of ingress and egress to his property measuring 23 cents. The First Appellate Court relied upon Ex.P6 which was a sale deed executed by Mr.Ivan D’Souza in favour of the defendant and this sale deed was attached with the sketch. The existence of the 20 links wide drain was mentioned in the sketch. The sketch filed by the defendant also indicated the existence of a 20 links wide drain. The evidence of DW.1 though indicated that there was no drain, but yet the documentary evidence indicated the existence of a drain. The First Appellate Court therefore held that the oral evidence of the defendant did not correspond with the documentary evidence on record. The First Appellate Court therefore held that the contention of the plaintiff that there was a drain which ran on the southern side of the suit properties, was probable. The First Appellate Court therefore held that if the drain was blocked, the water
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would inundate the suit properties. Therefore, the First Appellate Court dismissed both the appeals filed by the plaintiff and the defendant.
parties.
before the Trial Court is that suit item No.1 was originally owned and possessed by one P.N.Kamath, who sold the said property to the husband of the plaintiff in terms of a sale deed dated 23.01.1995 (Ex.P6). In terms of Ex.P10, Smt.Sharada Shetty and others executed a deed of surrender in favour of the husband of the plaintiff in respect of suit schedule item No.1. The suit schedule item No.3 was sold by Mrs.Dulcine D’Souza in favour of the husband of the plaintiff in terms of Ex.P5 dated
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16.02.1996. Later, the suit properties were settled by the husband of the plaintiff in favour of the plaintiff in terms of Exs.P3 and P4. The plaintiff perhaps who came to know that the road lying on the southern side of the suit schedule item No.1 was not properly explained, got a rectification deed dated 29.08.2009 executed, by which the sale deed dated 23.01.1995 was rectified and the measurement of the road lying on the southern side of the suit properties was mentioned as 23 links. The sale deed at Ex.P6 would indicate the existence of a road on the southern side of the suit schedule item No.1. Likewise, Exs.D1 and D2 – sale deeds, which are admitted by PW.1 in his cross examination did disclose the existence of a road on the southern side of the property conveyed. The Commissioner’s sketch also indicated the road on the southern side of the suit properties. The Commissioner’s sketch also indicated that the plaintiff had put up a wall across the property of the defendant. The Commissioner’s report also indicated that some fresh excavation was done near the drain lying on the southern side of the suit
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properties. The Trial Court and the First appellate Court have consistently held that the plaintiff had proved the existence of the 23 links wide roadway leading from the National Highway No.17 to the suit properties as well as the 20 links wide drain that lay on the southern side of the suit properties. Having regard to the police complaint lodged by the plaintiff with the jurisdictional police, both the Courts have held that the defendant had unlawfully blocked the 20 links wide drain that lay on the southern side of the suit properties which resulted in inundation of the suit properties. In so far as the evidence of PW.1 is concerned, both the Courts held that the plaintiff had unauthorizedly constructed a wall across the property of the defendant so as to ensure that the defendant does not enter his own property. Both the Courts have therefore tried to maintain the status quo in respect of the properties by directing the plaintiff to remove the wall put up by the plaintiff in front of the property of the defendant as well directed the defendant to restore the drain to its original condition.
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In view of disposal of this appeal, I.A. No.1/2020 for stay does not survive for consideration and the same stands disposed of.
Sd/JUDGE
sma
2 issues framed by the court
Whether the Trial Court and First Appellate Court were correct in finding that the plaintiff proved the existence of the 23 links wide roadway and 20 links wide drain.
Whether substantial questions of law arise for consideration in this Regular Second Appeal.
1 provisions across 1 enactments
MR. WALTER STEPHEN MENDES
MRS. PATCY FIGREDA
NATARAJ RANGASWAMY
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
